from the District Court of Teton County The Honorable Timothy
C. Day, Judge
of the State Public Defender: Diane M. Lozano, State Public
Defender; Patricia L. Bennett [*], Appellate Counsel. Argument by Ms.
K. Michael, Attorney General; David L. Delicath, Deputy
Attorney General; Christyne M. Martens, Senior Assistant
Attorney General; Caitlin F. Harper, Assistant Attorney
General; Becket B. Hinckley, Special Assistant Attorney
General. Argument by Mr. Hinckley.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Appellant, Joshua Roy Delbert Black, challenges his
conviction for aggravated assault, in violation of Wyo. Stat.
Ann. § 6-2-502(a)(i). He contends he was denied a fair trial
as a result of prosecutorial misconduct. He also claims that
his due process rights were violated because he was required
to wear a leg restraint during trial. We find that
prosecutorial misconduct occurred when the State failed to
comply with the district court's discovery order and when
the prosecutor made improper comments during closing
argument. We also find that the district court abused its
discretion in requiring Appellant to wear a leg restraint at
trial without conducting a hearing to evaluate the necessity
for the restraint. The cumulative impact of those errors
deprived Appellant of a fair trial. Accordingly, we reverse
and remand for a new trial.
Appellant presents the following issues:
1. Did the prosecutor commit misconduct when he failed to
comply with the court's discovery order?
2. Did the trial court abuse its discretion when it denied
Appellant's motion to restrict witness testimony?
3. Did prosecutorial misconduct occur during trial?
4. Was Appellant denied due process of law when he was
restrained during trial without an appropriate hearing to
determine if restraints were necessary?
5. Was Appellant deprived of a fair trial due to the
cumulative impact of the alleged errors?
Appellant and Kelli Windsor began dating in California in
June 2014. In July, Ms. Windsor moved to Jackson, Wyoming to
work as a horse-trainer and riding instructor for the
children of Jake and Patricia Nichols. The relationship
continued after the move and, in October, Appellant moved to
Wyoming to live with Ms. Windsor. They had lived together for
a week before the incident at issue in this case occurred.
On the night of October 26, Ms. Windsor received significant
injuries to her head and face. She claimed her injuries were
caused when she was attacked by Appellant in their residence.
Ms. Windsor did not report the incident to
police. She did, however, take pictures and videos
of her injuries with her cell phone. Later that evening, she
sent text messages to Molly Hufford, nanny for the Nichols
children. She provided pictures of her injuries along with
the statement: "What Josh did to me tonight so
there's witnesses. I can't come in tomorrow." In
addition to sending the pictures to Ms. Hufford, Ms. Windsor
sent text messages and photos to Appellant and
Appellant's friend. Those messages also indicated that
Appellant had caused Ms. Windsor's injuries.
Ms. Hufford did not see the message until the next morning
when she was at the Nichols residence. When she saw the
message, she notified her employers. Mr. Nichols went to the
residence, and Mrs. Nichols notified the police. When he
arrived at the residence, Mr. Nichols found Appellant and Ms.
Windsor sleeping in the bedroom and the apartment in
disarray. He observed broken furnishings and overturned
furniture. Law enforcement arrived a short time later and
detained Appellant. Ms. Windsor was transported to the
Appellant was arrested and charged with one count of
aggravated assault causing serious bodily injury in violation
of Wyo. Stat. Ann. § 6-2-502(a)(i) (LexisNexis 2013).
The Information also contained a "Notice of Enhanced
Penalties" and alleged that Appellant was a habitual
criminal under Wyo. Stat. Ann. § 6-10-201(a)(ii) with
three prior felony convictions. Trial was initially scheduled
for April 21, 2015 but was continued and rescheduled to June
22, 2015 at the request of the State. It was subsequently
rescheduled to September 28, 2015 at the request of Appellant
after his original defense counsel withdrew and the Public
Defender's office was appointed to represent him. New
defense counsel filed several discovery motions, including a
"Motion to Compel the Discovery of Facebook and Cell
The motion to compel was filed on July 8 and alleged:
[I]t is known that [Ms. Windsor] sent various pictures, text
messages, and information prior to, during, and after the
alleged event. This evidence may go directly to [Ms.
Windsor's] credibility as to her expected testimony; she
is the State's most important witness in this case. . . .
It is believed that some of these records were deleted by
[Ms. Windsor] or others[.] [O]btaining records from [Ms.
Windsor] is not sufficient and may be inaccurate.
motion also alleged that:
It is believed that it is much easier and more convenient for
the State to obtain these requested records than the
Defendant. It is known, in fact, that such a request for
Facebook to provide records is made frequently by law
enforcement in Teton County, Wyoming. See Records
Request at www.facebook.com/records/login (stating
that "If you are a law enforcement agent who is
authorized to gather evidence in connection with an official
investigation, you may request records from Facebook through
this system."). Whereas, it is unduly cumbersome and
costly, both in time and resources for the Office of the
State Public Defender to obtain these records via court
subpoena, or subpoena duces tecum, and the required modes of
providing notice and service.
motion requested Facebook and Verizon records from June 1,
2014 through November 30, 2014.
A hearing on the motion was held on August 7. At the hearing,
the prosecutor advised the court that the State had no
objection to the motion. The court granted the motion and
entered an order providing that the "State shall
exercise due diligence to obtain the requested information
and shall promptly request the information from Facebook and
Verizon Wireless and provide it to Defendant's
The State subsequently provided an extraction record of text
messages from one of Ms. Windsor's cell phones indicating
that some messages had been deleted. However, the State did
not attempt to contact Verizon or Facebook at any time
following the court's order. As a result, on August 28,
2015, Appellant filed a "Motion to Restrict Witness
Testimony for Failure to Comply with Discovery and Court
Order." In the motion, Appellant sought to exclude the
testimony of Ms. Windsor and all law enforcement officers as
a sanction for the State's failure to comply with the
The motion was addressed at a pretrial conference held on
September 14 and at a subsequent hearing held on September
16. Following the hearings, the district court entered an
order denying the motion for sanctions. In the order, the
court stated that it would entertain a defense motion for a
continuance and would expedite a new trial setting if
Appellant wished to attempt to obtain the information by
other means. The defense did not seek a continuance.
Appellant also filed a pretrial motion to appear at trial in
plain clothes and without restraints. In response, the State
advised the court that it had no objection to the motion. The
district court granted the motion in part. It ruled that
Appellant could appear at trial in plain clothes but
indicated that it would reserve a decision on whether
Appellant should be restrained in the courtroom until it had
an opportunity to hear from the Teton County Sheriff's
Office. No additional pretrial hearing on the issue of
restraints occurred, and Appellant was required to wear a leg
restraint during trial.
After a five-day jury trial, Appellant was found guilty of
aggravated assault under Wyo. Stat. Ann. §
6-2-502(a)(i). The jury also found Appellant to be a habitual
criminal under Wyo. Stat. Ann. § 6-10-201(a)(ii). The
district court sentenced Appellant to life in prison. This
appeal followed. Additional facts will be presented as
necessary in the discussion below.
Appellant alleges that the prosecutor committed misconduct by
failing to comply with the district court's discovery
order and by making improper statements and arguments during
trial. The State concedes some instances of prosecutorial
misconduct but asserts that the misconduct did not prejudice
Appellant. We review allegations of prosecutorial misconduct
under the plain error standard if there has been no objection
at trial. Carroll v. State, 2015 WY 87, ¶ 31,
352 P.3d 251, 259 (Wyo. 2015). Where there has been an
objection below, claims of prosecutorial misconduct are
reviewed under a harmless error standard.
Whether such misconduct has been reviewed on the basis of
harmless error, W.R.Cr.P. 52(a) and W.R.A.P. 9.04, or on the
basis of plain error, W.R.Cr.P. 52(b) and W.R.A.P. 9.05, this
Court has focused on whether such error . . . affected the
accused's "substantial rights." The
accused's right to a fair trial is a substantial right.
Wyo. Const. art. 1, §§ 6, 9, and 10; and see,
e.g., Jones v. State, 580 P.2d 1150, 1154 (Wyo. 1978).
Before we hold that an error has affected an accused's
substantial right, thus requiring reversal of a conviction,
we must conclude that, based on the entire record, a
reasonable possibility exists that, in the absence of the
error, the verdict might have been more favorable to the
McGinn v. State, 2015 WY 140, ¶ 13, 361 P.3d
295, 299 (Wyo. 2015) (quoting White v. State, 2003
WY 163, ¶ 7, 80 P.3d 642, 646 (Wyo. 2003)). "To
demonstrate harmful error, the defendant must show prejudice
under 'circumstances which manifest inherent unfairness
and injustice or conduct which offends the public sense of
fair play.'" McGinn, ¶ 13, 361 P.3d at
299 (quoting Phillips v. State, 2007 WY 25, ¶
8, 151 P.3d 1131, 1134 (Wyo. 2007)).
In his first issue, Appellant claims prosecutorial misconduct
occurred when the prosecutor failed to comply with the
district court's order compelling the State to exercise
due diligence to obtain the Verizon and Facebook records
requested by Appellant. The State concedes that the
prosecutor failed to comply with the order and that the
prosecutor made no attempt to contact Verizon or Facebook to
obtain the records sought by the defense. The State asserts,
however, that no misconduct occurred because the court's
order was "improper." According to the State,
"If the State was improperly required to provide the
information, its failure to do so cannot amount to
prosecutorial misconduct requiring
reversal." There are several troubling aspects to
First, the State offers no authority for its contention that
it does not have to comply with a discovery order if it
believes the order was improperly entered. There is, however,
authority to the contrary. See 4 Wharton's
Criminal Law § 618 (15th ed.) ("[T]he fact that an
order is erroneous or irregular is no excuse for its being
disobeyed."), and cases cited therein. Second, the State
fails to acknowledge the undisputed fact that the prosecutor
did not object to Appellant's discovery motion. During
the hearing on the original discovery motion, the prosecutor
told the court that the State had no objections to the
motion. He added, "We'll just give them what we can
and give it to counsel. It makes sense, it's that
simple." The district court relied on that
representation. In the court's "Order on Motion to
Restrict Witness Testimony" it stated: "In an Order
on Pretrial Motions entered August 12, 2015, and on the
basis that the motion was unopposed by the State, the
Court granted Defendant's motion to compel."
(Emphasis added.) And finally, this issue was not raised
below. As a general rule, we will not consider claims raised
for the first time on appeal. Davis v. City of
Cheyenne, 2004 WY 43, ¶¶ 25-27, 88 P.3d 481,
489-90 (Wyo. 2004). We recognize only two exceptions to that
rule: when the issue raises jurisdictional questions or it is
of such a fundamental nature that it must be considered.
Id. "This court has taken a dim view of a
litigant trying a case on one theory and appealing it on
another. . . . Parties are bound by the theories they
advanced below." Id. (quoting WW
Enterprises, Inc. v. City of Cheyenne, 956 P.2d 353, 356
(Wyo. 1998)). The issue raised by the State does not present
a jurisdictional question and it is not of such a fundamental
nature that it must be considered. We will not consider it
At the hearing on the discovery motion, the district court
asked the prosecutor: "So you're going to attempt to
comply with that request to the extent that it's
reasonably possible to do so?" The prosecutor replied:
"Absolutely." The district court's order on
discovery was explicit: "The State shall exercise due
diligence to obtain the requested information and shall
promptly request the information from Facebook and Verizon
Wireless and provide it to Defendant's counsel."
Despite the clear language of the order, the State never
contacted Verizon or Facebook to obtain the records. The
State offers no justification for that failure. There is
indication in the record that it would not have been
difficult for the State to make that request.
One of the exhibits in support of the motion for sanctions
was an email from the prosecutor to defense counsel. The
email contained a Facebook policy for addressing record
requests from law enforcement. According to the policy, law
enforcement "may expeditiously submit formal
preservation requests through the Law Enforcement Online
Request System at facebook.com/records, or by email . . .
." Once the request is received, according to the
policy, Facebook "will search for and disclose data that
is specified with particularity in an appropriate form of
legal process and which we are reasonably able to locate and
Additionally, during the hearing on the motion for sanctions,
the State presented the testimony of Special Agent Jim Bonich
of the FBI, who described the process for obtaining
information from Facebook. Agent Bonich testified that he
assists the prosecutor and law enforcement in Teton County
"as I'm able when I'm requested." According
to Agent Bonich, Facebook requires a preservation request
"to maintain content and other information from being
deleted." Agent Bonich testified that he had made
preservation requests to Facebook in the past, that he had
always received a response to those requests, and that
Facebook had never denied any of those requests. Agent Bonich
testified that he discussed the case with the prosecutor;
however, he did not contact Facebook in this case because he
was never asked to do so by the prosecutor. Similarly, the
Teton County Sheriff testified that the prosecutor never
informed him of the existence of the court's order.
Defense counsel summed up the importance of the requested
information in response to a question from the court during
the hearing on the motion for sanctions:
THE COURT: So what would you expect to be produced that would
[DEFENSE COUNSEL]: . . . This is a couple, particularly [Ms.
Windsor], she documented everything. This is a woman who
posted and texted and selfied constantly.
There's discrepancies in her timeline that night of where
she was. And since October the State has known that she's
documented her whereabouts and used that phone and
information from Facebook posts to help her reconstruct her
timeline and story and now that's not being turned over
to the [defense].
THE COURT: What evidence is there of discrepancies of where
[DEFENSE COUNSEL]: For example, she says she was at Teton
Village that night. I don't have any information that she
actually was at Teton Village that night. . . . [T]hey are
using that as where she was out and about. There is
information that she left the night of the assault and that
she was at least in her car and she hit a bear trash can
backing into it the night of the assault.
Her whereabouts on where these things happened are important
to her entire credibility on how she even remembers where she
was. She used her phone and her postings to tell law
enforcement, to jog her own memory to tell them what had
happened that night. To tell them her story was that she was
at the residence and she had been assaulted by Mr. Black.
And I can't verify when she left and went to Teton
Village in particular or who she was with when she did it
because that information is missing, except for it being
written in a law enforcement report and talked about in the
THE COURT: Okay.
The State contends that Appellant cannot demonstrate
prejudice because he "cannot assert with any certainty
that the information that may have been contained on Ms.
Windsor's Facebook page or in her Verizon Wireless phone
records would have been exculpatory such that it would have
changed the character of the jury's verdict."
Typically, there would be merit in the State's argument.
In this case, however, it is undermined by the fact that it
was the State's obligation, under the court order, to
obtain the information. The State also claims that Appellant
was not prejudiced because he could have requested the
information from Facebook and Verizon. That contention was
addressed by the district court. Although the district court
denied the motion to restrict witness testimony, it did not
find that Appellant was not prejudiced by the State's
failure to perform. As stated in the court's order
denying sanctions: "While Defendant could have requested
the discovery itself from Facebook and Verizon, presumably
Defendant did not make those requests because it justifiably
relied on the Court's Order that the State would obtain
the requested information." The order denying sanctions
was entered ten days prior to trial. By then, Appellant had
been in custody for more than ten months. Under the
circumstances, his decision not to seek a continuance should
not be deemed a waiver of the claimed error.
We have previously indicated that failure to comply with a
discovery order should not be tolerated. In another case
addressing the State's failure to provide discovery in a
criminal case, we stated that, "The failure to comply
with a discovery order is to be deplored." State v.
Naple, 2006 WY 125, ¶ 29, 143 P.3d 358, 367 (Wyo.
2006) (quoting Lindsey v. State, 725 P.2d 649, 655
(Wyo. 1986)). We find the prosecutor's failure to comply
with the order constitutes misconduct.
Denial of Appellant's Motion to Restrict Witness
As noted above, Appellant sought an order "restricting
the Teton County Sheriff's Department and [Ms. Windsor]
from testifying" as a result of the prosecutor's
failure to comply with the discovery order. The district
court denied the motion but indicated that it would
"entertain a motion for a continuance" so that
Appellant could "seek the discovery information
directly." Appellant challenges that decision in this
We review the district court's decision for an abuse of
A trial court has discretion in determining the proper
sanction for a party's violation of its discovery
responsibilities. Lawson v. State, 994 P.2d 943, 946
(Wyo. 2000); Lindsey v. State, 725 P.2d 649, 655
(Wyo. 1986). "The decision of the court in addressing
the breach of a discovery order will be set aside only for an
abuse of discretion." Lindsey, 725 P.2d at 655.
In determining whether the trial court abused its discretion,
"the ultimate issue is whether or not the court could
reasonably conclude as it did." Lawson, 994
P.2d at 947.
Naple, ¶ 8, 143 P.3d at 360-61. In determining
the appropriate sanction for the State's failure to
comply with the discovery order, the district court evaluated
the three factors identified in Naple, ¶ 12,
143 P.3d at 362. Those factors are (1) the reasons the State
delayed producing the requested materials, including whether
or not the government acted in bad faith when it failed to
comply with the discovery order; (2) the extent of prejudice
to the defendant as a result of the government's delay;
and (3) the feasibility of curing the prejudice with a
continuance. In Naple, ¶ 13, 143 P.3d at 362,
we emphasized that dismissal should only be granted under
After applying the factors set forth in Naple, the
district court determined that the State's case was
largely dependent on the testimony of Ms. Windsor and that
granting the motion would "eviscerate the State's
case." Ordinarily, we would find no abuse of discretion
in the district court's decision not to impose the
requested sanction. In this case, however, we find the
court's decision was based on the unsupportable premise
that the State acted in good faith when it failed to comply
with the discovery order.
In applying the Naple factors, the district court
found that the State "tried to enlist the help of law
enforcement to comply with the discovery order." The
court then concluded that the State had "complied with
the spirit of the Court's Order, if not the letter of
it." There is no factual support in this record for that
conclusion. The State was ordered to "exercise due
diligence to obtain the requested information and [to]
promptly request the information from Facebook and Verizon
Wireless and provide it to Defendant's counsel." It
is undisputed that the State never obtained the requested
information and, more significantly, never made any attempt
to obtain the information. When asked on direct examination
about his conversation with the prosecutor, Sheriff Whalen
testified that the prosecutor had not informed him that the
court had issued the discovery order. He stated "I
don't know that I received - I didn't see any order.
I [didn't] know that I was under any order by the
Court." (Emphasis added.) Similarly, Agent Bonich
stated that the prosecutor did not ask him to contact
Facebook in this case. Agent Bonich stated, however, that he
had made preservation requests to Facebook in the past and
had always received a response, and that Facebook had never
denied any of his preservation requests. Sergeant Stanyon